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Interview with Bill Barnhart, part I

Posted Fri, May 28th, 2010 5:28 pm by Erin Miller

As part of our series on John Paul Stevens,Steve Sanders, an associate in the appellate and Supreme Court practice group of Mayer Brown and an adjunct faculty member at the University of Michigan Law School, recently interviewed Chicago Tribune editor and writer Bill Barnhart about his new biography of Justice Stevens, John Paul Stevens: An Independent Life.

The first half of the interview appears below; the second half will run next week. UPDATE, June 2: The second half of the interview is here.

1. You were a newspaper journalist for almost forty years, recently as a financial writer for the Chicago Tribune. What got you interested in the Supreme Court and in writing a biography of Justice Stevens?

I was a political reporter for much of my career, with long stints covering the Illinois General Assembly and state government in Springfield. About ten years ago, my research associate, Gene Schlickman, a retired Illinois legislator, and I published the biography of Otto Kerner, who served as the governor of Illinois, the chair of the national Kerner Commission on civil disorders, and a judge of the U.S. Court of Appeals for the Seventh Circuit in Chicago. Kerner served on the Seventh Circuit with Stevens.

After the Kerner book received some critical acclaim, we thought about a second project. Gene proposed Justice Stevens, noting his family and professional background in Chicago and the fact that a full Stevens biography had never been published.

I was intrigued by a number of things: Stevens had served for decades on the federal bench almost completely out of the spotlight; despite knowing Kerner, Stevens had written a stinging dissent in a case (McNally v. U.S.) that threw out the so-called honest services theory of mail fraud prosecution, on which Kerner had been convicted and sent to prison near the end of his life (the "honest services" mail fraud statute, enacted by Congress after McNally, is currently before the Court in three separate cases); and the fact that Stevens' father left voluminous family and personal papers to the Chicago History Museum.

Gene and I began our research with a completely blank slate. I found dissecting Supreme Court opinions no more difficult than understanding over-the-counter derivatives and swaps in my day job as a financial columnist for the Chicago Tribune.

2. How long did this project take? And did Justice Stevens cooperate with your research?

I date the beginning of the Stevens research to October 2002, although Gene and I probably were talking about it before then. At that time and until March 2008, I was working full-time as a daily columnist at the Chicago Tribune. That fact accounts for much of the time span between the book's conception and delivery.

But another factor was equally if not more important. Gene and I did not have a theory of the case, so to speak, that we set out to prove. We wanted our research to guide the outcome, not the other way around. The problem was that Justice Stevens' enormous paper trail as an appellate judge, as well as the large cast of characters to be interviewed, meant that we postponed coming to grips with the structure of the book.

This is a true dilemma for any historian or biographer. It's like the stereotype of the perpetual student. Not until two publishers rejected the initial book outline and chapter drafts did we realize that we needed to focus. Works of this kind, aimed at a broad audience, require two principal elements: a solid narrative or, in our case, a series of linked narratives, and a compelling premise or argument. Believe it or not, a biography of a sitting justice is not per se an alluring prospect, even to the most sincere publisher, unless it's offered by one of the handful of journalists or scholars with national (i.e., commercially marketable) reputations for writing about the Supreme Court. Readers can decide whether we reached the two goals I speak of.

As to Justice Stevens, he cooperated at arm's length. He could have put out the word to family members, former clerks, etc., not to speak to us. He did not. On the other hand, he declined to sit for lengthy interviews, such as any biographer would seek. Anyone who knows anything about Justice Stevens is not surprised by his decision, which — also no surprise "“- did not waver despite repeated requests.

On two occasions, at the start and end of our work, we interviewed Justice Stevens briefly in his chambers, where he shared a few anecdotes. After the first meeting, he agreed to answer questions in writing by mail, a valuable arrangement which I completely blew. Proud of my research, I sent him a multi-page, single-spaced list of essay questions about his life. I can almost hear him chuckling when he wrote to me that to respond to my dense interrogatories would be akin to writing the book for me. Later, he wrote several letters to answer short, fact-checking questions, which I should have posed in the first place.

3.So how did you resolve your "theory of the case" problem? Did you settle on a central thesis or overarching argument about Justice Stevens' career in the law ?

The theory of the case is hard to place on a bumper sticker, although that's what many publishers expect. What is the book's argument? If I say "“ and I do "“ "independent judges are better judges" "“ you might reasonably ask, what do I mean by "independent"? Independent of what? Independent as opposed to what? These are good questions, and I wrestled with them.

The easiest way to illustrate how I arrived at the notion of judicial independence as my central premise, other than by reading the book, of course, is to think about President Obama's recent nomination of Elena Kagan to succeed Stevens. Apparently, Ms. Kagan has wanted to wear judicial robes since she was in high school. In a way, she seems to have been molded for the job. Most people viewed the newspaper photo of her wearing such garb as a high school student as quaint and prescient. Taking nothing away from her excellent credentials, I viewed the photo with some concern.

In his senior year, John Stevens did not give his high school yearbook a clue about how he saw his future. The book's editors wrote that his most likely career was kindergarten teacher. After Japan surrendered in World War II, Navy Reserve Lieutenant Stevens may have headed back to graduate studies in English literature with the beloved Professor Norman Maclean at the University of Chicago, until he received a letter from one of his older brothers about the appeal of a career in the law. The rest is history.

The point of this narrative is that there is no evidence that Stevens ever aspired to sit on a judicial bench until he was approached by former Illinois Senator Charles Percy, who should be best remembered for his successful efforts to upgrade the stature of the federal bench in Illinois. As Illinois's senior senator, with the power to recommend federal appointments, Percy had a rule: Anyone who sought a nomination for the bench would not be considered. His first, and I would say best, exercise of that principle was his recommendation of Stevens for the Seventh Circuit in 1970. To his credit, President Gerald Ford five years later also looked past many individuals who were mentioned or actively lobbying to succeed Justice William O. Douglas and, instead, chose Stevens, whom almost no one in Washington knew.

John Paul Stevens: An Independent Life explores other elements of judicial independence, how to spot it, how to achieve it and why it matters, especially on the Supreme Court. The most important "why" is that independent Justices tend to look on their work, as Justice Stevens has for thirty-four years, as a job, not as a calling or a deserved entitlement they have obtained. In this regard, the Percy rule has a great deal of value.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.